Redress scheme for cohabiting couples

Cohabitants

Cohabitants are defined in the Act as two same-sex or opposite-sex adults who are:

• Not married to each other and not in a registered civil partnership
• Not related within the prohibited degrees of relationship (broadly speaking, relationships which would make them ineligible to marry each other)
• Living together in an intimate and committed relationship

Qualified cohabitants

A financially dependent cohabitant may be able to apply to the courts for redress if the relationship ends as the result of death or otherwise. In order to apply for redress you must be a qualified cohabitant, that is, you must have been:

• A cohabitant for at least 5 years or
• A cohabitant for 2 years if you have had a child with your partner

However, if one of you is still married, then neither of you may be a qualified cohabitant until the married person has been living apart from his/her spouse for at least 4 of the previous 5 years – in effect, until he or she is entitled to seek a divorce.

The redress arrangements applies only to those qualified cohabitants whose relationship ends after the Act commenced on 1 January 2011, but the time spent cohabiting before that may be taken into account.

Redress orders

If you are a qualified cohabitant, you may apply for orders such as maintenance orders, property adjustment orders, and pension adjustment orders and related orders such as attachment of earnings orders. You may also apply for provision to be made from the estate of a deceased cohabitant. You do not have any automatic right to get such orders. The court may make such orders if it is satisfied that you were financially dependent on your cohabitant partner.

In making a decision, the courts must take into account a number of factors including

• The financial circumstances, needs and obligations of each cohabitant
• The rights of others (including the rights of spouses, former spouses, civil partners, former civil partners and dependent children of either partner)
• The duration and nature of the relationship
• The contribution made by each, financial and otherwise

Such orders may not affect the rights of spouses or former spouses. They may affect the rights of civil partners or former civil partners.

In general you must apply for such orders within 2 years of the end of the relationship but an application for provision from the estate of the deceased partner must be made within 6 months of an application for a grant of probate. In general, such orders will lapse and will no longer be available if you marry or enter a civil partnership.

Redress orders and tax

Any maintenance payment ordered by the court is treated as your income and you have to pay tax on it. The amount of the maintenance payment is allowed as a deduction from the income of your former cohabitant. More information is available in our document on maintenance and tax.

Where a property adjustment order is made, there are no capital gains tax, gift or inheritance tax issues for either of you on the transfer, and no stamp duty is payable. However, when the property is disposed of at a later date, the total period of ownership of the property by both of you is taken into consideration for the purposes of determining whether any capital gains tax is payable on the later disposal.

Voluntary agreements

Agreements on financial matters between cohabitant partners may be regarded as valid only if:

• Each of you has had independent legal advice or you have received legal advice together and have waived the right to independent legal advice
• The agreement constitutes a contract
• The agreement has been signed by each of you

Such an agreement may include a provision that the redress scheme does not apply to them. This is different from similar agreements by married couples. Agreements between a married couple may not validly exclude either party’s right to apply to the courts for various orders (for example, a maintenance order). A court may set aside or vary a cohabitants’ agreement in exceptional circumstances if its enforcement would cause serious injustice. Agreements entered into by cohabitants before the Act commenced are enforceable.